Lincoln Financial Corp. v. Ferrier

567 P.2d 1102, 1977 Utah LEXIS 1214

• Court: Utah Supreme Court
• Decided: July 28, 1977
• Docket: 14296
• Status: Published

Opinions

CROCKETT, Justice:

Plaintiff, Lincoln Financial Corp., sued to evict defendant, Dorothy S. Ferrier, for refusing to vacate an apartment in plaintiff’s complex in Riverdale after she had been served with proper notice and was therefore in unlawful detainer. In her defense and as an asserted counterclaim the defendant alleged that the plaintiff’s actions to terminate her tenancy and evict her were but an effort to suppress her attempts to obtain better conditions for herself and other tenants; and that he thus violated her right to freedom of speech and expression, wherefore he was not entitled to evict her; and she counterclaimed for the sum of $10,000 damages for what she refers to as a wrongful and “retaliatory eviction”; and for $100,000 punitive damages.

The trial court struck her so-called counterclaim and, it appearing without dispute that she had remained in the apartment for about two and one-half months after she had been given proper notice and was in unlawful detainer, gave judgment against her for treble the rental, amounting to $1,219.20, plus $500 attorney’s fees and costs. Defendant appeals, challenging those rulings.

Defendant moved into plaintiff’s apartment in December, 1974, under a month to month tenancy agreement. It provided that either party could terminate by giving the other fifteen days written notice. Defendant was served with timely notice on June 10th, 1975, which stated that her lease would be terminated on June 30. She refused to vacate the premises, and plaintiff filed a complaint alleging that she was in unlawful detainer of the apartment, and requested treble damages, as provided by Section 78-36-10, U.C.A.1953, and attorney’s fees as provided for in the lease.

A principal aspect of this appeal is the defendant’s contention the trial court improperly struck her asserted defense and counterclaim. We have no disagreement with the proposition that if the defendant had a proper counterclaim arising out of the same transaction or business as the subject matter of the complaint, it could be asserted herein to the end that all of whatever controversy exists between the parties may be settled as simply and expeditiously as possible by allowing all legitimate claims, defenses and counterclaims relating thereto in one action.¹ But we do not see that as supporting defendant’s contentions herein.

In support of her asserted defense and counterclaim defendant alleges that the landlord (plaintiff’s manager) accused her of agitating other tenants and causing him trouble; and that his attempt to evict her for that reason constituted a deprivation of her constitutional rights of thought and expression. Her counsel advances arguments and cites authorities to the effect that where a landlord brings an action for eviction which is shown to arise out of some unjustifiable consideration such as race, or religion, or other improper ground, that fact may be stated as a defense against what is referred to as “retaliatory eviction.” We are aware of the fact that in some jurisdictions, where it is made to appear that the basis for the eviction violates a superseding constitutional right of the tenant, this concept of a defense against a thus wrongfully grounded “retaliatory eviction” has been taken cognizance of.² Without passing judgment on whatever merit or -demerit that doctrine may have in other circumstances, we think it has no application to the facts alleged here.

We are also concerned with the constitutional rights of the landlord. Our Utah Constitution, Article I, Section 1 states; “All men have the inherent and inalienable right ... to acquire, possess and protect property . . . .” The United States Constitution, Amendment V, provides that: “No person shall be . deprived of life, liberty, or property, without due process of law . . . .” And Amendment XIV, Section 1, expressly makes this applicable to the states wherein it provides, “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .” In any event the enjoyment of the right “to acquire, possess and protect property” is guaranteed. (All emphasis herein is ours.)

The question that must be confronted and answered is: If the landlord cannot enforce the terms of his lease and proceed under the express provisions of our statutory law to reclaim his property, what has happened to his property rights? He should be accorded the unimpaired enjoyment of all of the rights and privileges therein. If he is compelled to surrender his contractual and statutory rights by being required to furnish an apartment to someone other than he desires as a tenant, that is nothing other than a deprivation of his property. It would be anomalous indeed if a landlord could assert his property right and require any other tenant, however peaceable or desirable that tenant may be, to remove from his premises, but could not do so to one who was neither peaceable nor desirable.

Upon the basis of what has been said above it is our opinion that the trial court was correct in its analysis and its conclusion that the allegations of the defendant above discussed constituted neither a defense to the plaintiff’s complaint for eviction nor a counterclaim related thereto which is cognizable under our law; and that they were thus properly stricken and disregarded.

Defendant was actually given twenty days notice prior to the end of the month of June and her tenancy was thus properly terminated and she was in unlawful detain-er after that date. Inasmuch as it appeared without dispute that defendant persisted in remaining in possession of the apartment until September 10, 1975, the trial court assessed damages at the rate of $175 a month, which the parties had agreed upon as the rental value, and trebled the damages as permitted by Section 78-36-10, U.C. A.1953, and entered judgment accordingly.³

Concerning the award of attorney’s fees, the situation is different. There are two difficulties with that award. The first is that the allegations of the plaintiff’s complaint and the relief demanded clearly indicate that the plaintiff had cancelled and terminated the contract and based its cause of action on our unlawful detainer statutes Chapter 36, Title 78, U.C.A.1953. Therefore it was not then entitled to invoke the covenants of the contract to obtain an attorney’s fee.⁴ The second is that on the summary judgment there is no foundation in the evidence upon which to base a finding and award of attorney’s fees.⁵

On the basis of what has been said herein, the award of attorney’s fees is vacated, but in all other respects the judgment of the trial court is affirmed. The parties to bear their own costs.

HALL, J., concurs in the result.

1 . That is the purpose of Rule 13, U.R.C.P.; see also Rule 1. For a case so holding see White, et al. v. District Court, 120 Utah 173, 232 P.2d 785; and for a good example of the wisdom and justice thereof see that case on appeal from the final judgment, wherein defrauded purchasers of motel had recovered $23,000 on their counterclaim, Lewis v. White, 2 Utah 2d 101, 269 P.2d 865.

2 . See Utah Law Review, Fall, 1973, Vol. 3, p. 503; E & E Newman, Inc. v. Hallock, 116 N.J.Super. 220, 281 A.2d 544; Engler v. Capital Management Corp., 112 N.J.Super. 445, 271 A.2d 615; Aweeka v. Bonds, 20 Cal.App.3d 278, 97 Cal.Rptr. 650; Aluli v. Trusdell, Hawaii, 54 Haw. 417, 508 P.2d 1217; S. P. Growers Ass’n v. Rodriguez, 17 Cal.3d 719, 131 Cal.Rptr. 761, 552 P.2d 721 (1976).

3 .That section provides that . . the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible or unlawful detainer, for the rent and for three times the amount of the damages thus assessed.” For a lucid discussion pointing out that it is not the “rent” which is trebled, but the “damages” suffered by the landlord, see Forrester v. Cook, 77 Utah 137, 292 P. 206. (Emphasis added).

4 . Ibid; and see Jacobson v. Swan, 3 Utah 2d 59, 278 P.2d 294.

5 . See Butler v. Butler, 23 Utah 2d 259, 461 P.2d 727 and cases therein cited.